Argument recap: Court searches for a principled remedy

The Supreme Court heard arguments Monday in companion cases that ask what remedy, if any, should be available to criminal defendants who forgo favorable plea bargains based on bad advice from their lawyers. We previously previewed the cases, Lafler v. Cooper and Missouri v. Frye,here.

During the arguments, several Justices appeared to accept the importance of effective assistance of counsel during the plea process, particularly in a system in which more than ninety percent of defendants plead guilty. At the same time, the Justices seemed disinclined to allow defendants who plead guilty or who are convicted after a fair trial to obtain the benefits of a previously offered plea bargain. The Justices spent much of the arguments pressing whether – and how – courts can, as Justice Alito put it, “unscramble the eggs” in a practical or principled way to come up with an adequate remedy.

In Lafler v. Cooper, Michigan Solicitor General John J. Bursch set the stage by arguing that “to prove a Sixth Amendment violation you have to demonstrate unreliability of the adjudicatory process.” Simply showing a different “outcome” (a longer sentence) from botched plea bargain advice is not enough. Justice Kagan repeatedly challenged this position, observing that “here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage.” She asked, “why doesn’t that just meet the requirements of . . . both deficiency and prejudice?” Even if the “outcome” standard did not apply, Justice Sotomayor questioned how a proceeding could be reliable and fair when respondent Anthony Cooper’s counsel had gone to trial having “fundamentally misgauged the law.” Bursch responded that no evidence suggested that the erroneous view of the law espoused by Cooper’s counsel during the plea process affected the fairness of Cooper’s trial.

Justice Ginsburg pressed Bursch on the consistency of the state’s rule. Because the state conceded that bad advice causing a defendant to enter a plea entitles the defendant to relief, Justice Ginsburg asked why “defective advice causing [a] defendant to turn down a plea” would result in no remedy? Justice Scalia provided an answer: “the difference is when you plead guilty you deprive yourself of the 24-karat test of fairness, which is a trial by jury . . . . When you don’t plead guilty you get what is the best thing in our legal system.”

Justice Alito steered the questions to the remedy, an issue that dominated much of the argument. Justice Alito found the “heart” of Michigan’s argument to be that “there just is no way to unscramble the eggs in this situation.” Agreeing with Justice Alito, Bursch argued that providing a new trial after a defendant already had an error-free trial makes no sense. And specific performance (requiring the state to “re-offer” the original plea offer) infringes on the prosecutor’s discretion and implicates a variety of practical issues, such as the inevitable changes in circumstances (and information available to the prosecution and court) after a trial has taken place.

William M. Jay, an Assistant to the U.S. Solicitor General, argued on behalf of the United States as an amicus in support of Michigan. Jay likewise stated that the relevant test for prejudice is not “outcome” based, but instead whether the proceedings that produced a defendant’s conviction and sentence were “reliable.” Justice Breyer countered that “[t]here is nothing in the Sixth Amendment that has these qualifications,” and he also raised the remedy issue: “[W]hat’s the problem about ordering the prosecution to simply repeat the offer he gave before?” Justice Scalia responded that the defendant “had a full and fair trial.” How then, Justice Scalia asked, “could it be unfair to give him the sentence that he deserved?”

Jay avoided pointed questions about whether plea bargaining is always a “critical stage” that triggers the Sixth Amendment’s guarantee of effective assistance of counsel or, alternatively, whether the Sixth Amendment applies only to guilty pleas. Jay responded that the United States was assuming for purposes of this argument that the defendant had a right to effective advice about his plea.

Questions for Cooper’s Supreme Court counsel, Detroit Assistant Defender Valerie R. Newman, focused primarily on the remedy. The lower court had ordered the prosecution to either extend the original plea offer to Cooper or release him. Justices Alito and Kennedy zeroed in on practical considerations, such as whether the trial judge considering the renewed plea bargain was entitled to take into consideration everything that he had learned during the trial, which may influence the judge to reject the plea. Newman said no. She argued that the judge had to “evaluate things at the point of the deficient performance.” Although Justice Alito found this argument “pretty incredible,” Newman said that “the State has to bear the burden of the unconstitutionality.” Justices Breyer and Scalia also pressed Newman on what happens if the trial judge rejects the renewed plea bargain and whether that meant the defendant received a new trial – which, in Justice Alito’s view, would “make[] zero sense.” And Justice Kennedy expressed concern that requiring judges to go back and try to determine whether a plea offer was made, whether and when the prosecutor would have withdrawn the plea, or whether the defendant would have accepted the plea but for counsel’s ineffectiveness would be “simply unworkable.” Chief Justice Roberts similarly asked how a trial judge would ever know, in deciding whether to accept the new plea, if a defendant really would have accepted the plea agreement the first time it was offered.

Newman explained that ineffective assistance claims have always had “imperfect remed[ies].” The trial courts, she continued, must be given the discretion to determine both the factual issues and the appropriate, tailored remedies, especially given the wide array of factual situations that could exist.

In the second case, Missouri v. Frye, Missouri Attorney General Chris Koster argued that plea negotiations that do not result in a guilty plea are not a critical stage of criminal proceedings. Justice Kennedy found it “very difficult” to accept the proposition that a determination of whether plea bargaining is a critical stage depends “on what the end result is.” Justice Breyer, returning to a theme that he raised throughout the morning, suggested that perhaps there is a constitutional right to effective assistance of counsel during the plea bargain process in general, but that a higher standard applies to plea refusals in order to succeed on such a claim. Reserving much of his time, Attorney General Koster closed by arguing that permitting courts to second-guess plea bargain offers would jeopardize finality, which is crucial in a system where more than ninety percent of defendants plead guilty.

Assistant to the U.S. Solicitor General Anthony A. Yang argued for the United States as amicus in support of Missouri. Parting with Attorney General Koster, Yang was willing to assume that a defendant has a right to be properly informed by counsel during the plea bargaining process. The federal government’s view was that once a defendant pleads guilty in open court, that admission “wipes free antecedent constitutional errors.” Once the guilty plea is entered, the only remaining inquiry is whether the waiver of trial rights was knowing and voluntary. Justice Kagan challenged that position, questioning whether it would mean that “a State could set up a system where it says we are going to do all our negotiating with the defendant with no counsel present in the room, but we are going to keep a lawyer on board just in the courtroom to advise him whether he should plead.” Yang disagreed with the suggestion, but noted that when a defendant pleads guilty, “you have consented to the entry of judgment, and even if you had received better advice . . . you would not have gone forward to trial.”

The Justices asked Missouri Assistant Public Defender Emmett D. Queener, who argued for respondent Galin Frye, several questions about the knowing and voluntary waiver of rights during a guilty plea. Many of the Justices asked Queener how Frye’s guilty plea could be unknowing or involuntary simply because Frye did not know of a previous plea offer. Queener argued that Frye could not make a rational decision about pleading guilty without knowing the potential limitation of liability that he could have received under the prior offer. Justice Scalia’s questions also focused on the practical difficulties and potential floodgates of allowing ineffective assistance of counsel claims: “[E]very one of these pleas is subject to the contention that oh, there was an earlier plea, or I should have . . . taken it.”

As with Cooper, the Justices again homed in on the proper remedy, if any. Responding to the suggestion that reinstatement of the prior plea offer was a proper remedy, Justice Ginsburg questioned why the prosecutor’s discretion should be circumscribed in this case, when the wrong was solely on the part of defense counsel. This circled back to her earlier questions, which focused on a prosecutor’s discretion to withdraw plea offers and a judge’s discretion to reject plea agreements. On the remedy question, Queener ultimately stated that “there is never going to be a perfect remedy for any of these violations.” This prompted Justice Scalia to add, “that’s one of the things that causes us to be suspicious of whether there is a constitutional violation . . . . because there really isn’t any perfect remedy.”

As an interesting side note, questions about capital cases surfaced several times throughout the arguments, especially from Justices Breyer and Alito. Both of them seemed to suggest that capital cases may be different. For example, Justice Alito suggested that there might be a requirement that in capital cases, any offer of a noncapital sentence as part of a plea would have to be waived in open court.

While it is perilous to predict the outcome of a case based on the argument, the Justices seemed disinclined to grant a defendant who missed out on a favorable plea bargain a new trial or specific performance of the original plea deal. And without a clearly defined remedy that is both fair and practical, the Court might find that this proves that there is no right to effective counsel in the first instance.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.